Supplement to the
Preface: Further Developments in International Human Rights (May 2003)

Why a supplement to
the preface?

Since the publication of the third
edition, the political and conceptual landscape in which the human rights
regime operates has undergone an enormous transformation. The attacks of
September 11th may yet prove pivotal in creating a permanent shift
in the balance between human rights and national security. Joan Fitzpatrick’s
following article discusses the range of issues that these recent developments
raise:

Joan
Fitzpatrick, Speaking Law to Power: The War Against Terrorism and Human
Rights, 14 European J. Int'l L. 2413 (2003)
(summary edited by the author; most footnotes omitted):

A.
INTRODUCTION

The human rights movement uses
legal language and institutionsto limit the
harm the powerful inflict on the vulnerable. The ‘war against terrorism’ tests
the limits of the legalist approach, leaving human rights advocates marginalized.
Some governments, ostensible champions of the rule of law, have, at least
temporarily, constructed ‘rights-free zones.’[27] Bedrock principles have been displaced by legally
meaningless terms, leaving activists to wrestle with legal phantoms.[28]Acts of terrorism are obviously
antithetical to human rights values, but the international human rights regime
has itself produced relatively little to confront the destructive force of
groups such as Al Qaeda. Rhetorically and politically, this places human rights
institutions at a disadvantage. The human rights framework is not inflexible
in the face of extraordinary dangers, and a complex jurisprudence has developed
to balance rights against the imperative needs of security. However, with
the exception of the definition of ‘crimes against humanity’ and concepts
of universal jurisdiction, human rights law offers relatively few legal rules
for the conduct of transnational criminal networks. Human rights norms constrain
state responses to terrorism more clearly and directly.

The notion that the September
11 attackers represented an entirely new type and degree of threat led to
a “war” that fits no accepted legal paradigm and leaders of the antiterrorism coalition resist providing a stable
definition of the “enemy.” For purposes of this essay, I will assume the
target of the “war against terrorism” to be all international terrorists of
“global reach,” and the objective to be their eradication or incapacitation.

This essay separately addresses
the substantive and institutional implications of the “war against terrorism”
on human rights. The crisis illustrates the centrality of the rule of law
to the protection of human rights, and its fragility even in liberal democracies.
Legal rules governing permissible state responses to terrorism must be located
in the murky space between five distinct bodies of international law: human
rights, refugee law, humanitarian law, norms concerning the use of force in
international relations, and international criminal law.

B.
SUBSTANTIVE IMPLICATIONS

U.S.
policy makers, who dominate the agenda of the “war against terrorism,” manifest
an absolute conviction of the rightness of their goals and their methods.
Error is impossible and they exploit the ambiguities of humanitarian law and
the rules on the use of force, refusing to recognize human rights law as being
of any relevance. At the same time, the human rights community has reacted
to the “war against terrorism” with its own strong sense of moral outrage.
Human rights actors ranging from the High Commissioner to NGOs, have reiterated
fundamental principles, stressed that their preservation is vital in time
of crisis, and asserted that their erosion would hand the terrorists a victory
over tolerance, the rule of law, and basic human dignity.

Thus,
a clash of moral absolutes displaces genuine dialogue between those prosecuting
the “war against terrorism” and those who position themselves as guardians
of the human rights regime. No space has yet appeared for negotiation of defined
norms possibly better adapted to the new world in which we find ourselves.
Nevertheless, it is possible to sketch several substantive areas in which
norm clarification may occur if counter-terrorism pursues its move from a
crime-control to an armed conflict paradigm.

1.
Pre-Emptive Self-Defense

Alterations in
norms governing the use of force in international relations may indirectly
affect human rights standards by increasing the perceived legitimacy of pre-emptive
defensive action. The doctrine of pre-emptive self-defense articulated by
the U.S. Executive dispenses with the Charter’s structural and substantive
limits on the use of force. Massive military force may be used at will, against
any state. No limits of proportionality are relevant, because the future
terrorist activity to be prevented can always be hypothesized in apocalyptic
terms.

Control measures
against individuals suspected of terrorist involvement are shifting from a
retrospective to a prospective approach (pre-emptive self-defense writ small).
Techniques of prevention include military attacks, seizure of terrorist suspects
in third states without the formalities of extradition, detention without
charge or trial, and trial by ad hoc military tribunals.

The
criminal law paradigm that previously characterized international cooperation
against terrorism focuses on individual responsibility for proven past criminal
acts, even where prevention of additional and possibly greater harm is also
sought. In the United States, the “war against terrorism” continues to include
ordinary criminal prosecutions, as well as the potential implementation of
a shadow criminal justice system through the “military commissions” authorized
by President Bush’s November 13, 2001, Military Order.[29]

Administrative
detention is not an unusual or innovative antiterrorist technique. But the
move to “war” rhetoric adds a new wrinkle to the old debate about the derogability
of arbitrary detention norms and fair trial rights. Derogation standards
incorporate by reference norms of humanitarian law. Human rights bodies have
drawn upon the fair trial guarantees of the Geneva Conventions (which apply
in the most extreme of emergencies) to reach the conclusion that many aspects
of fair trial are functionally non-derogable. Moreover, the right to challenge
the lawfulness of detention before an independent judicial body must never
be suspended.

The current emphasis upon internment
of terrorist suspects raises the overarching question whether the attacks
of September 11 have resulted in a fundamental shift in the balance between
security and liberty. A move to “war”-time internment may be motivated by
a belief that preventive measures are more effective in neutralizing potential
terrorist threats, without the risk and cost entailed in individual prosecutions.
Whether humanitarian law displaces human rights law in relation to such detention
is considered in the following section.

2.
A War Without Rules?

The
“war against terrorism” eludes definition, largely because those prosecuting
the campaign find ambiguity advantageous to avoid legal constraints and to
shift policy objectives with minimal accountability. As many have noted, neither
“war” nor “terrorism” has a fixed meaning in contemporary international law.
Assuming the “war against terrorism” is being conducted by the United
States and allied states against all international terrorists
of “global reach,” then one must navigate the boundaries between humanitarian
law and international criminal law, with differing implications for human
rights. This “war” is not an international armed conflict cognizable under
Common Article 2 of the Geneva Conventions of 1949, nor even under the expanded
definition of Article 1(4) of Protocol Additional I of 1977. This semantic
move may affect the capacity of the human rights regime to preserve essential
aspects of the rule of law during the present crisis.

For example, the Guantánamo captives
and the “enemy combatants” being held in Afghanistan
and in the United States are indefinitely
detained without charge or trial, and without access to counsel or family.
Terrorist suspects are being seized far from the battle zone in Afghanistan
and transported to these detention sites. The policy of the U.S. Government
is that the captives are not prisoners of war (POWs) whose internment is regulated
by the Third Geneva Convention, and they are denied the mandatory hearings
before a “competent tribunal” to determine if they are combatants eligible
for POW status. Neither are the captives civilians
interned in occupied territory whose treatment is governed by the Fourth Geneva
Convention, nor are they “enemy aliens” subject to internment under traditional
rules of international law and the Fourth Geneva Convention.[30] The selection of internees is determined by a pure exercise of
administrative discretion, without announced criteria or process, and without
judicial oversight.

What is the relevance of the prohibition
on arbitrary detention to these practices? A semantic move to “war” may create
gaps in human rights protection that are not adequately filled by established
protections of humanitarian law. Humanitarian law recognizes the permissibility
of incapacitating combatants and civilians who pose a significant danger to
a detaining power during active hostilities. At least where combatants are
granted POW status, judicial supervision is not integral to such internment
regimes.In contrast, derogation jurisprudence under human rights treaties
stresses the indispensability of judicial supervision of the lawfulness of
detention. Thus, the fate of those on Guantánamo may hinge upon whether the
semantic move to a “war against terrorism” substitutes an internment regime
for “unlawful combatants” (without the protections of either the Third or
Fourth Geneva Conventions) for the prohibition on arbitrary detention in human
rights law. Conceptualizing the campaign against global terrorism as an international armed conflict
risks undermining the integrity of international humanitarian law.

3. The Permanent
Emergency

The
“war against terrorism” is the quintessential “normless
and exceptionless exception.” No territory is contested;
no peace talks are conceivable; progress is measured by the absence of attacks,
and success in applying control measures (arrests, intercepted communications,
interrogations, and asset seizures). The war will end when the coalition decides,
on the basis of unknown criteria.

Derogation norms
apply in all emergencies threatening the life of the nation, regardless of
the source of the threat, both in war and peacetime. However, the derogation
jurisprudence of the UN and regional human rights bodies was primarily developed
in the context of internal armed conflict and repression, and has rarely addressed
the peculiarities of international armed conflict. The current crisis may
require the human rights treaty bodies to re-examine their generally deferential
approach to states’ claims of emergency, to consider the length of emergencies,
to determine the circumstances under which terrorist suspects may be tried
by military courts or interned as “enemy combatants” without judicial supervision,
to refine the element of proportionality (“strictly required by the exigencies
of the situation”) with respect to deprivations of liberty in the context
of potential risks of plots involving weapons of mass destruction, to assess
whether certain interrogation techniques or prolonged incommunicado detention
for purposes of interrogation contravene non-derogable rights, and to determine
whether the limitation of antiterrorist derogation measures to non-citizens
violates nondiscrimination norms.

4. Territorial
Scope of Human Rights Protection

Human rights are
universal. But how effective is the international human rights regime in
constraining extraterritorial state conduct? How relevant is it in prescribing
the behavior of non-state entities that do not exercise or aspire to territorial
control?

The
territorial scope of human rights treaties is not clear from the texts. Extraterritorial
conduct of a military or law enforcement nature against suspected terrorists,
with or without the consent of the territorial state, may give rise to claims
that human rights treaties or customary norms have been violated. Cooperation
among Latin American dictatorships during the “dirty wars” resulted in cross-boundary
kidnapping, torture, and disappearance of suspected leftists. The Human Rights
Committee has held in López Burgos v. Uruguay:[31]

[I]t would be
unconscionable so to interpret the responsibility under article 2 of the Covenant
as to permit a State party to perpetrate violations of the Covenant on the
territory of another State, which violations it could not perpetrate on its
own territory.

The Inter-American
Commission on Human Rights has indicated in state reports and in individual
communications that coming within a state’s “jurisdiction” are “individuals
interdicted on the high seas, shot down in international airspace, injured
in invasions by the respondent state, or attacked by agents of the respondent
state in another country.”[32]

The Turkish invasion
and occupation of Northern Cyprus similarly resulted in judgments by the European
Court of Human Rights that the conduct of the Turkish military could be challenged
as a violation of the European Convention.[33] Insufficient jurisprudence yet exists among the human rights
bodies to set the boundaries for when extraterritorial conduct by military
and law enforcement agents implicates the jurisdiction of the state party,
and when human rights obligations do not attach or apply only in a diluted
form. The clearest case, however, would appear to be the Guantánamo situation,
in which a state creates offshore detention facilities to which it forcibly
transports persons seized in various countries, detains them indefinitely
without charge or access to counsel, and exercises complete dominion over
their treatment and fate.

Additional
issues implicating the territorial scope of human rights obligations raised
by the tactics of the “war against terrorism” include state complicity for
human rights violations resulting from the forced return ofindividuals
to states in which they will suffer deprivations of fundamental rights. Finally,
the due diligence standard for human rights complicity in the acts of non-state
actors requires more careful delineation in relation to the acts of international
terrorist groups operating on national territory.

5. Nondiscrimination
and Guilt by Association

The
nondiscrimination norm is central to human rights, but its applicability to
noncitizens has never been adequately clarified in international
human rights law.[34]Many enforcement measures adopted in the aftermath
of the September 11 attacks have targeted noncitizens,
despite the fact that nationality is a poor predictor of involvement in terrorist
groups.[35] Ethnicity and religion, conjoined with alienage, have exposed
particular groups of noncitizens to differential
application of harsh enforcement measures, some involving unusual secrecy.[36] Nevertheless, the September 11 hijackers fit a certain nationality,
ethnic, and religious profile, and law enforcement officials can hardly be
expected to ignore that reality. Terrorism is not a problem of migration,
and deportation is a remarkably shortsighted response to international terrorism[37] but it is evident that Al Qaeda and other transnational
terrorist networks exploit the tools of a globalizing world (international
travel, e-mail, wire transfers) to plot mass destruction. Migration control
and other enforcement targeted at noncitizens will
undoubtedly remain an integral aspect of the “war against terrorism.” I will
sketch here a human rights framework for counterterrorist strategies that
incorporate nationality, ethnicity, or religious distinctions, or that rely
heavily on migration control elements.[38]

Human rights law
does not forbid all distinctions between nationals and noncitizens.[39] In general, differential treatment is permissible
where the distinction is made pursuant to a legitimate aim, the distinction
has an objective justification, and reasonable proportionality exists between
the means employed and the aim sought to be realized. The derogation norms
are constructed on the traditional understanding of international armed conflict,
in which “enemy aliens” may be subjected to special control measures. The
liberal democracies had interned enemy aliens during World War II and did
not intend to outlaw the practice in human rights treaties, if the detentions
satisfied the criteria of legality, proportionality, and consistency with
other international obligations (most relevantly, humanitarian norms on civilian
internment in the Fourth Geneva Convention).[40] Nationality is deliberately not included in the list of status
grounds in the nondiscrimination provisions of the derogation clauses.

But how does this
derogation framework operate in the “war against terrorism”? Al Qaeda has
no citizens; indeed, it is strikingly multinational both in membership and
in operations. Some distinctions should be drawn between law enforcement
measures (criminal prosecution or administrative detention) and migration
control measures (deportation and denial of admission). Selective denial
of fair trial rights to noncitizens violates the
derogation clauses, both because certain fair trial rights are functionally
non-derogable and because the strict proportionality requirement cannot be
satisfied. Derogation norms require judicial supervision of all detentions,
and limiting administrative detention to noncitizens
is vulnerable to challenge on grounds of non-derogability, proportionality,
and discrimination.

The picture with
respect to migration control measures is less clear. Distinctions in this
legal context between citizens and noncitizens are
inherent. Distinctions among persons of different nationalities are also
common. One troubling set of counterterrorist policies is the selective arrest,
deportation, and prosecution of persons fitting a certain ethnic or religious
profile, on grounds unrelated to terrorism. In the United
States, immigration policy since September 11 has strikingly
been characterized by the discriminatory application of broadly defined “inherent”
authority to detain, deport, exclude and prosecute, rather than the application
of specific antiterrorism measures that have been crafted to balance security
and fairness.[41]

6. Asylum

Refugee protection
is profoundly affected by the trend toward “securitizing international migration.”[42] The “war against terrorism” threatens refugee protection in three
distinct ways: (1) the exclusion clauses of Article 1F of the 1951 Refugee
Convention may be given an overbroad interpretation; (2) non-refoulement claims by persons suspected of terrorist involvement
may be rejected without fair process; and (3) cessation of refugee protection
may be precipitously imposed on the basis of shallow victories, such as the
tenuous transition in Afghanistan.

Security Council Resolution 1373 stresses the necessity to prevent
terrorists from receiving asylum. The 1951 Refugee Convention
was never intended to provide safe haven to persons who had committed crimes
against humanity, serious non-political crimes, nor acts contrary to the purposes
or principles of the United Nations; its Article 1F codifies these three exclusion
categories. Terrorist acts, under certain circumstances, might fit any of
these categories.[43] However, overbroad interpretations or truncated
status determination processes create a serious risk that persons might be
excluded without reliable proof of their personal involvement in genuinely
exclusionary conduct.[44] The Human Rights Committee and the Committee Against Torture have repeatedly warned states parties that
measures they adopt to comply with Resolution 1373 must be consistent with
their obligations under the ICCPR and CAT, specifically in relation to refoulement to torture, summary execution, or other
grave human rights violations.[45]

C. INSTITUTIONAL
IMPACTS

Human rights crises
have sometimes wrought significant institutional changes in the international
human rights regime. For example, grave violations associated with the states
of siege in Chile and Argentina
prompted the establishment of country and thematic working groups and rapporteurs,
transforming the UN Charter-based bodies to active monitors as well as standard
setters.

The “war against
terrorism” has not yielded such demonstrable institutional impacts. The changes
are largely atmospheric rather than concrete. Six developments deserve brief
mention:

The Security Council’s
Counter-Terrorism Committee represents a post-September 11 institutional innovation
but with troubling human rights implications. Security Council Resolutions
1267 and 1373 obligate all UN member states to freeze assets of individuals
and organizations listed by any other member state on the basis of alleged
ties to terrorist groups. As it became clear that persons and organizations
were suffering severe consequences from listing, without notice, hearing,
or appeal, the Counter-Terrorism Committee adopted a de-listing policy in
August 2002. This policy follows a diplomatic protection model – the state
of origin must be induced to petition the listing state for de-listing, with
the Security Council as final arbiter. While some states have championed their
citizens the process remains deeply flawed. The inaccessibility and opaqueness
of the listing and de-listing processes open troubling avenues for governments
to repress dissidents, and to compel other UN member states to follow suit.

2. Fissures
over international criminal tribunals

Liberal internationalists
hoped that shared revulsion after September 11 would open an important space
for principled multilateralism, offering a chance to prove the unique value
of international criminal tribunals to try “crimes against humanity.”[46] No such possibility emerged. The Statute of the International
Criminal Court entered into force in July 2002, only to trigger aggressive
U.S. efforts to exempt U.S.
politicians and soldiers from the ICC’s jurisdiction.

3. Aggravated
U.S.exceptionalism

Another negative
trend associated with the “war against terrorism” is the aggravation of U.S.
tendencies toward corrosive unilateralism and exceptionalism.
The attacks of September 11 appeared at first to have convinced the Bush administration
of the need for international solidarity against the terrorist threat. But
military success in Afghanistan caused
a reversion to more deeply held values – realist
dismissal of international law, unilateralism, and American exceptionalism
to human rights constraints.

4. European
efforts to adopt common policies with entrenched human rights values

U.S.
excesses open space for European leadership, and differing views on human
rights have created strains in transatlantic relationships. The Council of
Europe Committee of Ministers in July 2002 disseminated guidelines for states
to preserve human rights values while fighting terrorism.[47] European states act in awareness that the European
Court of Human Rights will ultimately decide whether counter-terrorism measures
comply with the ECHR.

5. Unholy alliances
between the antiterrorist coalition and repressive states

Hypocrisy and
unholy alliances to shield violators from deserved criticism are nothing new
in the UN political human rights bodies. September 11 has resulted in a significant
deterioration in these tendencies that may have a lasting effect on the human
rights regime. The thematic mechanisms of the UN Commission on Human Rights
clearly feel beleaguered, and violator governments appear emboldened. Liberal
democracies sacrifice their leverage over repressive governments by adopting
policies antithetical to the rule of law and by crassly agreeing to tone down
or silence criticism in exchange for cooperation in counterterrorist strategies.

The UN Commission
on Human Rights has come increasingly under the sway of repressive governments,
including some with sorry records of complicity in international terrorism.[48] In this poisoned atmosphere, it is difficult
to imagine the successful and balanced negotiation of paradigm-shifting human
rights norms directly governing the conduct of transnational terrorist networks.
Moreover, it appears unlikely that the human rights bodies will fundamentally
reorient themselves away from a state-centered approach to prescribing obligations
and monitoring compliance.

6. Tests of
the relevance and capacities of human rights treaty bodies

In the past year,
the human rights treaty bodies have not exerted a strong influence on state
behavior, and the “war against terrorism” instructively illuminates constraints
on their resources and mandates. The Human Rights Committee and other bodies
have urged states whose reports have come under review in the past year to
conform their counterterrorist policies to their human rights obligations,
but the submission of reports and scheduling of reviews are unrelated to the
severity of human rights crises. No effective procedural mechanisms have
been established to deal systematically with derogations. The IACHR faces
the risk that even its most sophisticated evaluation of the Guantánamo detention
policy will simply be ignored by the United States.[49] The United States
has failed to file a derogation notice under the ICCPR, and in the absence
of a highly unlikely interstate complaint against the United
States under Article 41, a forum to contest Guantánamo
as a “rights-free zone” appears unavailable under the ICCPR.

The
different result in the United Kingdom
under the ECHR illustrates the vital necessity to incorporate human rights
standards into domestic law. The remoteness and slowness of the human rights
treaty bodies, and the uncertain import of their decisions, underline the
importance of cultivating a sense of responsibility in domestic courts to
enforce international human rights obligations directly.

D. CONCLUSION

The human rights
regime’s legalist approach provides limited leverage against either transnational
terrorist networks or states seeking to eradicate them in the “war against
terrorism.” Yet, the human rights regime cannot desist from reiterating fundamental
principles and the pivotal importance of the rule of law. The semantic move
to an armed conflict paradigm and away from an international crime control
approach has undermined the effectiveness and clarity of human rights constraints
on counterterrorist strategies, at least for the time being.

[27] Harold Koh used this phrase to describe the U.S. Naval base at Guantánamo Bay, when Haitian and Cuban asylum-seekers were
held there and denied access to U.S.
courts to assert their rights under international refugee law and U.S.
law. Koh, ‘America’s Offshore
Refugee Camps’, 29 Richmond L. Rev. (1994) 139, 140-41.

[28] In the U.S. context,
for example, the Government argues that the individual rights of selected
terrorist suspects under the U.S. Constitution have been displaced by ‘laws
and customs of war’ that bear little resemblance to contemporary humanitarian
law. See infra at notes 35, 44, 51-52.

[29] Detention, Treatment, and Trial of Certain Non-Citizens in the
War Against Terrorism, 66 Fed. Reg. 57833 (Nov. 13, 2001).

[30] Interned civilians are also entitled to hearings to determine
the necessity for restrictions on their liberty. Fourth Geneva Convention, Art. 43.

[33] Cyprus v. Turkey, 4 E.H.R.R. 282 (“the authorized agents of the
state, including diplomatic or consular agents and armed forces, not only
remain under its jurisdiction when abroad but bring any other person or property
within that jurisdiction… to the extent that they exercise authority over
such persons or property. Insofar as, by their acts or omissions, they affect
such persons or property, the responsibility of the state is engaged”); Loizidou
v. Turkey, judgment of 23 March 1995 (preliminary objections), Series A no.
310; Loizidou v. Turkey, judgment of 18 December
1996 (merits), 1996-VI Eur. Ct. H.R. 2216; Cyprus
v. Turkey, Judgment of 10 May 2001, at <http://www.echr.coe.int/Eng/Judgments.htm>,

[34] See, generally, Richard Lillich, The
Human Rights of Aliens in Contemporary International Law (1984); Carmen Tiburcio,
The Human Rights of Aliens under International and Comparative Law (2001);
Sub-Commission on Prevention of Discrimination and Protection of Minorities,
International Provisions Protecting the Human Rights of Non-Citizens, Study
prepared by the Baroness Elles, UN Doc. E/CN.4/Sub.2/392/Rev.1
(1980); Declaration on the Human Rights of Individuals Who are not Nationals
of the Country in which They Live, GA Res. 40/144 of 13 December 1985; Sub-Commission
on the Promotion and Protection of Human Rights, The rights of non-citizens,
Working paper submitted by Mr. David Weissbrodt in accordance with Sub-Commission
decision 198/103, UN Doc. E/CN.4/Sub.2/1999/7 (1999) and Progress report of
the Special Rapporteur, Mr. David Weissbrodt, UN
Doc. E/CN.4/Sub.2/2002/25 (2002); Commission on Human Rights, Migrant Workers,
Report of the Special Rapporteur, Ms. Gabriela Rodríguez
Pizarro, UN Doc. E/CN.4/2001/83 (2001).

[35]U.S. citizens John Walker
Lindh, Jose Padilla, YaserHamdi, James Ujaama, and a group of men of Yemeni descent arrested near
Buffalo have come under suspicion as Al Qaeda operatives. Citizens of allied
states such as the United Kingdom,
France, and Australia
are either being tried for Al Qaeda-related crimes or detained without charge
by the United States. The roughly
600 captives at Guantánamo possess the nationalities of 43 states. SIAC invalidated
the detention of eleven noncitizens under the UK
Anti-terrorism, Crime and Security Act 2001 on the ground that noncitizens do not present a danger distinct from that posed
by UK citizens involved in terrorism.
. . .

[36] Post-September 11 U.S.
immigration policies are described in David Cole, Enemy Aliens, 54 Stan. L.Rev. 953 (2002); Margaret Stock, United States Immigration Law in a World
of Terror, 7 Bender’s Immig. Bull. 559 (2002);
and Human Rights Watch, Presumption of Guilt: Human Rights Abuses of Post-September
11 Detainees (August 2002). Space does not permit all of the extraordinary
immigration measures, law enforcement measures, and military policies targeted
at noncitizens in the aftermath of September 11
to be summarized here.

[37]Osama Bin Laden took up residence in Afghanistan
in 1996 upon his expulsion from Sudan,
under U.S. pressure; Saudi
Arabia declined his rendition, preferring to expatriate
him rather than to try him.

[38] This framework is summarized from Joan Fitzpatrick, The Human
Rights of Migrants, in International Legal Norms and Migration (T. Alexander
Aleinikoff, ed., forthcoming).

[39] Three rather opaque provisions in major human rights treaties
appear to authorize such distinctions: (1) Art. 1(2) of
the International Convention on the Elimination of Racial Discrimination,
which disclaims application to “distinctions, exclusions, restrictions or
preferences … between citizens and non-citizens”; Art.16
of the ECHR, which permits restrictions on the political activity of noncitizens;
and Art. 2(3) of the International Covenant on Economic, Social and
Cultural Rights, which permits developing states to limit the economic rights
of noncitizens. These provisions have generally
been given a narrow interpretation by treaty bodies.

[40] See A.W.B. Simpson, In the Highest Degree Odious: Detention Without
Trial in Wartime Britain (1992);
John Christgau, “Enemies”: World War II Alien Internment
(1985).

[42] Thomas Faist, ‘Extension dudomaine de la lutte’: International
Migration and Security before and after September 11, 2001, 36 IMR 7 (2002).

[43] Art. 1F should be restrictively interpreted because of the grave
consequences – excluded persons may be refouled
to situations where they face persecution.

[44] See Geoff Gilbert, Current Issues in the Application of the Exclusion
Clauses (paper prepared for UNHCR Global Consultations on International Protection,
May 2001); Exclusion from Protection, 12 Int’l J. Refugee L. Special Supplementary
Issue (2000).